Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Tuesday, March 07, 2006

People v. Hofsheier (Cal. Supreme Ct. - March 6, 2006)

You're going to have to pardon some of the language in this post (or skip it), but it's necessary given the nature of the case. Which is a tough one, in my view.

It's all about rational basis review. Here's the deal. Vincent Hofsheier is a 22-year old man. He pleads guilty to engaging in consensual oral copulation with a 16-year old girl. Which is a crime. Indeed, it's a felony. Not a good thing to do.

I know what you might be thinking. As we used to say, "16 will get you 20". But that's not actually true, or at least not here in California. He actually gets probation, plus 120 days in county jail. But, critically, he's also required -- under the statute -- to mandatory registration as a sex offender for life. Which, as you might imagine, is very much not a fun time.

Here's the rub -- and it's a tough one. Had Hofsheier actually had sex with the minor, he wouldn't be subject to mandatory registration as a a sex offender. Due to a (longstanding) quirk in California's laws relating to sexual conduct with minors, because he's 22 and she's 16, only oral copulation subjects you to mandatory statutory registration. In other words, a blowjob gets you registered for life, but actual statutory rape doesn't.

So Hofsheier claims -- and the trial court agrees -- that this statute makes uttery no sense, and that in subjecting oral copulation but not intercourse to mandatory registration, the statute unconstitutionally deprives him of equal protection of the laws. Which is a pretty good argument, because the state is wholly unable to come up with a persuasive argument for why the law is written that way. Sex with minors is worse than oral sex with minors. It's that simple.

Which is, ultimately, what the California Supreme Court holds, in a 6-1 opinion by Justice Kennard. Justice Baxter dissents, but his arguments aren't particularly persuasive. His best argument (amongst several weak ones) is that it makes more sense (or, more accurately, it might hypothetically make sense, in some parallel universe) to publish oral sex more severely than regular sex because the Legislature might conclude that oral sex is more common, and hence needs more deterrence, because at least some minors are unwilling to (to use his words) "go all the way". And, given the contours of rational basis review, even such a fairly lame argument might be enough to uphold the statute. But the majority disagrees, and I can somewhat see why.

But my take, honestly, is a little different. I don't see why the State can't argue -- though I don't see them actually making this argument anywhere -- why the statutory distinction can't be supported merely on the basis of a moral judgment. Namely, that blowjobs are morally worse than actual sex. I have no doubt that this was, in fact, actually why the (messed-up) statutory regime actually arose; after all, back when California first enacted the statute, all oral copulation offenses were prosecuted (along with bestiality) as "the infamous crime against nature". Why can't the Legislature simply -- and constitutionally -- say that "We punish oral sex more than straight sex because we like oral sex less."?

Okay, I admit, maybe they don't actually like it less, but they might at least find is more immoral -- at least when other people do it -- and hence more worthy of punishment. Why isn't that a permissible basis for the statute? For example, imagine the Legislature distinguishes -- as most states do -- between regular rape (or statutory rape) and rape (or statutory rape) with a foreign object. Presumably, the Legislature can properly and constitutionally punish the latter more than the former, even absent any evidence of greater "harm" from the latter, merely on the basis of a moral judgment about the difference between these offenses. Ditto for anal intercourse versus regular intercourse. Why can't the Legislature simply say: "In the area of sexual offenses, we find certain conduct -- conduct (like statutory rape) that is constitutionally unprotected -- to be more perverse and hence worthy of punishment?" After all, we do that all the time.

So, in the end, I think that, particularly in the area of constitutionally unprotected sexual conduct -- which is surely what we're talking about here, since it's a minor -- there's a strong argument that the Legislature has a great deal of leeway to make moral decisions. Sure, you still can't discriminate against classes (homosexuals) or speech or on other unconstitutional grounds. But I'm not sure that the equal protection clause really stops the Legislature from making judgments about the relative immorality of various crimes and sexual offenses. Sure, we may disagree with those judgments, and conclude -- as virtually everyone would -- that oral sex with a minor isn't worse than regular sex. But if the Legislature comes out the other way -- and, in 1921, I'm fairly confident that they would have, and at least hypothetically might do so today -- does that really violate equal protection?

Obviously, it's a stupid statute, and one that needs changing. So a large part of me is happy that the California Supreme Court struck it down. But does rational basis review really allow such a result. For me, that's the doctrinally tough part about this case, and on that issue, I'm not sure that I'm yet entirely convinced.